SBS holds a valuable collection of archival media assets of up to 35 years vintage. Recognising the reuse potential of the collection and its public value, SBS has recently commenced the Media Assets Management (MAM) Project and Rights Management Project to digitise and preserve its media assets and their associated rights metadata.

SBS wishes to reuse archival SBS content in many platforms and projects. However, “orphan works” are a recurring issue. SBS applies the following definition of “orphan works”:

“copyright material for which the rightsholder cannot be identified, or is identifiable but cannot be found, after a reasonable good faith search by the user.”

Discovery of an orphan work issue can block the reuse of archival content in many projects, due to fears that a rightsholder will later emerge and demand substantial compensation or withdrawal of the material after the project has been published or distributed.

As there is currently no legal defence to use of orphan works, SBS project managers often justifiably do not wish to assume orphan works risks to a project cost centre, despite the overall corporate and public benefit of reusing the archival content.

SBS has for some time, and continues to, advocate for orphan works reforms to the Copyright Act 1968. However, in the meantime SBS has developed a corporate risk management policy to efficiently manage the existing risks of orphan works.

The attached Statement reflects SBS’s policy of minimising and managing orphan works issues while maximising the amount of taxpayer funded SBS archival content which can be re-released or reused.

SBS STATEMENT ON ORPHAN WORKS [VERSION 1.0 FEBRUARY 2011]

1) SBS will minimise orphan works by implementing a centralised rights management process to capture all rights metadata in archival and new content in digitised form.

2) Where archival content is to be reused, good faith reasonable searches will be carried out to find all rightsholders whose permission is required. A record of these searches will be kept with the program records and made available on request to any orphan works rightsholder who later emerges.

3) A “good faith, reasonable search” means a search which genuinely attempts to find the rightsholder to negotiate in good faith for permission to use the content. SBS supports the concept of “scalable search” referred to in the National Film and Sound Archive’s Statement on Orphan Works. In the context of public broadcaster archives, scalable search depends on the kind of content in question, the nature of the proposed reuse, the timeframe of the project and available resources.

4) The Copyright Act permits certain fair dealing and other uses such as for news reporting, which do not require permission. In some circumstances SBS may rely on these exceptions to use content which is an orphan work.

5) An orphan work which is an underlying part of a program will be edited out if practical and suitable to the integrity of the program to do so. Where an orphan work is standalone, the option of using substitute content will be considered.

6) If the orphan work is to be used, SBS will in appropriate circumstances include a “orphan works” notice, stating that it has attempted to locate all rightsholders and giving an SBS contact for rightsholders should they come forward.

7) Where orphan work content requires substantial editing, SBS will indicate that such editing has occurred. SBS will otherwise avoid infringing the moral rights of the rightsholder.

8) If a rightsholder comes forward, SBS will negotiate in good faith with the rightsholder to obtain their permission or discuss the rightsholder’s wishes.

9) SBS will continue to work with industry and rightsholder bodies in refining its approach to orphan works. SBS welcomes responses on this version 1.0 Statement: please refer comments to SBS Legal & Rights at darryl.robinson@sbs.com.au.

10) SBS will continue to lobby government for appropriate orphan rights reforms.